No Duty to Reimburse Judge for Disciplinary Proceedings

This action arose from proceedings before the Ohio Supreme Court Board of Commissioners on Grievances and Discipline (the Board). Plaintiff, Deborah P. O'Neill, was Common Pleas Judge for Franklin County, Ohio from 1992 to 2004. O'Neill sued Kemper Insurance Companies and Lumbermen's Mutual Casualty Company asserting, in part: (1) declaratory judgment for obligation to reimburse attorneys' fees, costs and expenses under a professional liability policy; (2) breach of contract; and (3) bad faith.

In January 2001, the Office of Disciplinary Counsel for the Ohio Supreme Court sent a Letter of Inquiry to O'Neill regarding 44 alleged instances of judicial misconduct. Over the next 21 months, various materials were exchanged. In November 2002, an Amended Complaint, comprised of 6 counts and 55 instances of alleged judicial misconduct was filed with the Board. A hearing on these allegations was conducted over a 19-day period and included the testimony of over 100 witnesses.

The Board found against O'Neill on 4 of 6 counts, and suspended O'Neill's license to practice law for 2 years. The Ohio Supreme Court affirmed, with some modifications.

Throughout the disciplinary proceedings, O'Neill was represented by attorney David Greer. His hourly rate was $175 and total charges for representing O'Neill were in excess of $580,000.00. In her capacity as a Franklin County Common Pleas Judge, O'Neill was covered by a policy of professional liability insurance issued by Kemper and Luberman's.

O'Neill filed suit in the U.S. District Court (S.D. Ohio) seeking partial reimbursement for attorney's fees, costs and expenses incurred in defending against the 2 counts on which she prevailed. The District Court granted Kemper and Luberman's motion for summary judgment on all issues, and O'Neill appealed to the Sixth Circuit.

The Sixth Circuit defined the issue on appeal: "We must decide whether the language [of the insurance policy] allows for partial reimbursement of attorneys' fees and costs prorated to the number of allegations an insured prevails on, as O'Neill contends, or whether it requires an insured to prevail on all allegations contained in one disciplinary proceeding in order to collect, as defendants argue."

The policy at issue provided, in pertinent part:
"A. WHAT WE COVER
Subject to all terms and conditions of this policy, we will pay on your behalf all damages and claim expenses arising out of a claim which you first become aware of and you report to us in writing during the policy period.
B. DEFENSE AND SETTLEMENT
We will provide for the defense of claims against you that are covered by this policy even if the allegations against you are groundless, false or fraudulent.
* * *
D. DEFINITIONS
Whenever used in this policy, the term:
1. Claim means:
* * *
b. Any allegations against you brought by an official disciplinary committee, judicial competence committee or other similar official committee of inquiry in disciplinary procedures, in [sic] connection with any such proceedings, our obligation under this policy is limited to reimbursing you for attorneys' fees and other reasonable costs, expenses or fees resulting from the investigation or defense of any such proceeding and then only in the event the allegations brought against you are dismissed or discontinued without a finding of fault or guilt on your part."

O'Neill argued that the use of the term "any" modified the term "allegations," and therefore, the policy required reimbursement for defending allegations which are "dismissed or discontinued without a finding of fault or guilt." Defendants countered that the section "only provides for reimbursement of attorney fees and expenses if the allegations are dismissed without a finding of fault or guilt," and O'Neill could not dispute that she was found guilty on four of six counts.

Under a de novo standard of review, the Court found that, according to the policy's plain language, the singular term "claim" encompassed all allegations brought in a disciplinary proceeding. It also found that the policy limited reimbursement of any "claim" to only a "proceeding" in which "the allegations brought against you are dismissed or discontinued without a finding of fault or guilt on your part." The Court concluded, "This language is clear and unambiguous, and provides for reimbursement of expenses only if a 'claim' — i.e., the allegations in a disciplinary proceeding — is dismissed or discontinued without a finding of fault."

The Court concluded that, for purposes of the policy, the entire disciplinary action comprised one "claim." In other words, it was a single proceeding that included multiple allegations. Under this policy, all of "the allegations" brought against O'Neill in this proceeding must have been dismissed or discontinued without a finding of guilt in order to qualify for reimbursement. Accordingly, the Court affirmed the District Court's grant of summary judgment.

brought against you are dismissed or discontinued without a finding of fault plaintiff in the disciplinary matter. plaintiff, through counsel, responded to the the facts and any inferences that can be drawn from those facts . . . in the light most favorable to the reasoning that, based on the facts already alleged, o'neill had not presented any evidence that n under d.1.b, the policy requires defendants to reimburse insureds for any allegations which are united states court of appeals for the southern district of ohio at columbus. st.3d 433, 439-40, 662 n.e.2d 1074, 1080 (ohio, 1996) (holding that parol evidence rule prohibits defendants-appellees. - v. no. 06-4416 o'neill v. kemper insurance cos., et al. page 4 to reserve [sic] objections on the record. count iii charged plaintiff with improper or guilt on your part. in ohio, the construction of contracts is a matter of law. see long beach ass'n, inc. v. plaintiff on four of the six counts[fn1] and suspended plaintiff's license to practice letter of inquiry setting forth an additional five (5) alleged instances of judicial during the policy period. you must communicate to us, within a reasonable period of time, your misconduct. the law firm of bieser, greer & landis, llp was retained to represent endorsement discussed above, as boyce f. martin, jr., circuit judge. deborah p. o'neill brought an action against groundless, false or fraudulent. similar official committee of inquiry in disciplinary procedures, in obligation under this policy is limited to reimbursing you for attorneys' fees jones, 697 n.e.2d 208, 209 (ohio 1998). "in construing the terms of any contract, the principal unambiguous terms of the policy, and ohio law does not allow promissory estoppel in such 1. claim means: she was found guilty on four of six counts brought against her. appellees' br. 4, 5. of county resources and personnel for her 2002 campaign for a seat on the franklin show that there is no genuine issue as to any material fact and that the moving party is entitled to 143 n.e. 388, 389 (ohio 1924)) (internal quotation marks omitted). cannot mount a claim for promissory estoppel that directly contradicts the language of that contract. a finding of fault or guilt on your part. draft complaint was issued to plaintiff on march 8, 2002 and plaintiff responded on of common pleas judge for franklin county, ohio from 1992 to 2004. on january (internal quotation marks omitted). "summary judgment is only appropriate if the pleadings, a judgment as a matter of law." id. (quoting fed. r. civ. p. 56(c)) (internal quotation marks - "dismissed or discontinued without a finding of fault or guilt." appellant's br. 13, 16-17. we believe the district court properly granted summary judgment to defendants on o'neill's follow the law. count ii charged plaintiff with improper refusal to allow attorneys communications, failure to appropriately exercise judicial discretion and failure to a. what we cover discovery, coupled with facts already alleged, she will be able to present a colorable claim of and we will, within 15 days of your objection, present our respective letter of inquiry to plaintiff regarding fourty-four (44) alleged instances of judicial extrinsic evidence of other promises made in contravention of the express terms of a written contract - , may 23, 2002. revisions to the complaint were made in may 2002 and a formal additionally held that o'neill's claim for promissory estoppel directly contradicts the plain and - the policy at issue provides that "all damages and claimexpenses arising out of a claim" will consent or objection to any claim settlement which we propose to $580,000.00. in her capacity as a franklin county common pleas judge plaintiff similar official committee of inquiry in disciplinary procedures. all other terms and conditions of this policy remain unchanged. convention facilities auth.,678n.e.2d519,526-27(ohio1997)(quoting ohio crane co. v. hicks, ii. january 19, 2001 letter. on june 14, 2001, the disciplinary counsel issued a second covered by this policy even if the allegations against you are plaintiff with making misrepresentations to lawyers, judges and court personnel in language, the singular term "claim" encompasses all allegations brought in a disciplinary promissory estoppel to a fact-finder. the district court granted summary judgment to defendants nonmoving party." keweenaw bay indian comm. v. rising, 477 f.3d 881, 886 (6th cir. 2007) kemper insurance companies and lumbermen's in this proceeding must have been dismissed or discontinued without a finding of guilt in order to that an enforceable contract exists and governs the substance of this lawsuit. accordingly, o'neill throughout the disciplinary proceedings, plaintiff was represented by david qualify for reimbursement. they were not, and under the plain language of the policy, she is not argued: july 17, 2007 no. 06-4416 policy is limited to reimbursing you for attorneys' fees and other in disciplinary procedures. in connection with any such proceedings, our to address the extrinsic evidence offered by defendants. see schifrin v. forest city enterprises, inc., was $175.00. the total charges for representing plaintiff were in excess of barr sales agency, inc. v. all-lock co., inc., 96 f.3d 174, 181 (6th cir. 1996) (citing cloverdale disciplinary committee, judicial competence committee or other which you first become aware of and you report to us in writing no. 06-4416 o'neill v. kemper insurance cos., et al. page 3 party." id. counsel bothpartiesagreethattheinterpretationofsectiond.1.bgovernsthe outcome of defendants' motion _________________ complaint with the board of commissioners on grievances and discipline against o'neill. that expenses under a professional liability insurance policy, (2) breach of contract, (3) bad faith, and the amended complaint was comprised of six counts and fifty-five (55) appeal from the united states district court discontinued without a finding of fault. [sic] connection with any such proceedings, our obligation under this before: martin and mckeague, circuit judges; greer, district judge.* the board of commissioners on grievances and discipline found against no. 06-4416 o'neill v. kemper insurance cos., et al. page 2 the course of her duties. count v charged plaintiff with committing acts the district court correctly interpreted the policy. according to section d.1.b's plain 1 instances of alleged misconduct. count i charged plaintiff with improper ex parte judicial competence committee or other similar official committee of inquiry misconduct. the board's decision was later affirmed by the ohio supreme court. for purposes of _________________ mutual casualty company, hundred witnesses. the district court denied o'neill's motion and granted defendants' motion. we now affirm. with regard to her claim for promissory estoppel. she argues that, if given adequate time to conduct for the sixth circuit because we find the language of the policy to be plain and unambiguous, there is no need argued: lawrence j. greger, dayton, ohio, for appellant. wilson g. weisenfelder, jr., subject to all terms and conditions of this policy, we will pay entitled to reimbursement. if the allegations are dismissed without a finding of fault or guilt," and o'neill cannot dispute that plain language of the contract. see davis v. loopco indus., inc. 609 n.e.2d 144, 145 (ohio 1993). _________________ thus barring claims for promissory estoppel where an express contract exists). deleted in its entirety and replaced by the following: a third letter of inquiry was issued on july 23, 2002, setting forth additional we will not settle any claim without your consent. however, hardship upon one of the parties thereto." foster wheeler enviresponse, inc. v. franklin county judgment to defendants: d. definitions this court reviews a district court's grant of summary judgment de novo, and "must view allegationsbroughtagainstyouare dismissedor discontinuedwithout omitted). "weighing of the evidence or making credibility determinations are prohibited at cos., 714 n.e.2d 898, 900 (ohio 1999). if the contract terms are clear and unambiguous, no interpretation or construction is necessary and the terms will be given the effect called for by the depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, x by this endorsement you and we agree that policy provision d.1.b is conducted over a nineteen day period and included the testimony of over one decided and filed: august 2, 2007 summary judgment ­ rather, all facts must be viewed in the light most favorable to the non-moving which "the allegations brought against you are dismissed or discontinued without a finding of fault disciplinary committee, judicial competence committee or other on your behalf all damages and claim expenses arising out of a claim defendants argue. or managerial capacity; or iii. county court of appeals. plaintiff responded to the amended complaint on january complaint contained six counts of alleged misconduct, supported by 55 factual allegations. after a. any demand received by you for money arising out of your b. any allegations against you brought by an official both parties agree that the language of the policy is the fundamental issue here. we must [fn1]as to counts ii and iii, there were no findings of misconduct. by his opinion regarding the claim settlement. opinion plaintiff-appellant, see cloverdale, 869 f.2d at 940; see also ed schory & sons, inc. v. society national bank, 75 ohio a. standard of review complaint was filed with the board of commissioners on grievances and discipline included multiple allegations. under section d.1.b, all of "the allegations" brought against o'neill the office of disciplinary counsel for the ohio supreme court ultimately filed an amended - is unclear or ambiguous, . . . will extrinsic evidence be considered . . ."). november 20, 2002 with the board of commissioners on grievances and discipline. (4) promissory estoppel. o'neill moved for partial summary judgment on her claim for breach of no. 06-4416 o'neill v. kemper insurance cos., et al. page 6 on june 18, 2002. plaintiff filed a formal response to the complaint on july 8, 2002. sept. 27, 2006 order, joint app'x 222-225 (alteration of policy language in order). greger, dayton, ohio, for appellant. wilson g. weisenfelder, jr., rendigs, fry, kiely & no. 06-4416 o'neill v. kemper insurance cos., et al. page 5 the district court adequately laid out the facts in its decision and order granting summary objective is to determine the intention of the parties." hamilton ins. serv., inc. v. nationwide ins. recommended for full-text publication file name: 07a0292p.06 c. summary judgment as to o'neill's promissory estoppel claim designation. _________________ defendants had promised to pay her attorneys' fees on a percentage basis. the district court whenever used in this policy, the term: - b. o'neill's claim for partial reimbursement for attorneys' fees and costs under the summary judgment as to all of o'neill's claims, and affirm the district court's denial of rendigs, fry, kiely & dennis, cincinnati, ohio, for appellees. on brief: lawrence j. of expenses only if a "claim" ­ i.e., the allegations in a disciplinary proceeding ­ is dismissed or position to an arbitrator selected by the supreme court and be guided 19, 2001, the office of disciplinary counsel for the ohio supreme court sent a dispute its terms, scope, or effect, one party cannot recover for promissory estoppel . . . ." terry supreme court. on september 7, 2004, the ohio supreme court affirmed the was covered by a policy of insurance issued by defendants. the policy provides, in i. o'neill argues that the use of the term "any" modifies the term "allegations," and therefore, and other reasonable costs, expenses or fees resulting from the investigation to the number of allegations an insured prevails on, as o'neill contends, or whether it requires an 64 ohio st.3d 635, 637, 597 n.e.2d 499, 501 (ohio, 1992) ("only when the language of a contract pursuant to sixth circuit rule 206 demonstrating judicial intemperance. count vi charged plaintiff with improper use equip. co. v. simon aerials, inc., 869 f.2d 934, 939 (6th cir. 1989)). neither party disputes the fact for the foregoing reasons we affirm the district court's grant of defendants' motion for b. defense and settlement contract. defendants opposed her motion and moved for summary judgment on all of her claims. the honorable j. ronnie greer, united states district judge for the eastern district of tennessee, sitting by o'neill's motion for partial summary judgment. 15, 2003. a hearing on the allegations contained in the amended complaint was promissory estoppel claim. in ohio, "[w]here the parties have an enforceable contract and merely decide whether the language allows for partial reimbursement of attorneys' fees and costs prorated for relief: (1) declaratory judgment as to the issue of reimbursement for attorneys' fees, costs and misconduct. plaintiff's counsel responded to the second letter on july 25, 2001. a - findings made by the board and suspended plaintiff's license to practice law for two * * * defendants counter that the section "only provides for reimbursement of attorney fees and expenses the policy, this action comprised one "claim." in other words, it was a single proceeding that pertinent part: for summary judgment on all of plaintiff's causes of action other than her allegation of promissory this action arises as a result of proceedings before the ohio supreme court's o'neill argues that defendants' motion for summary judgment should not have been granted "a contract does not become ambiguous by reason of the fact that in its operation it will work a instances of alleged judicial misconduct. an amended complaint was filed on reasonable costs, expenses or fees resulting from the investigation or acts, errors, or admission in your judicial, ministerial, administrative greer, of the firm bieser, greer & landis, llp, in dayton, ohio. greer's hourly rate no. 04-01135--edmund a. sargus, jr., district judge. a nineteen-day hearing, the board found o'neill guilty of four of the six counts of alleged years with one year stayed, on certain conditions. or guilt on your part." this language is clear and unambiguous, and provides for reimbursement defense of any such proceeding and then only in the event the proceeding. the section goes on to limit reimbursement of any "claim" to only a "proceeding" in section d.1.b was replaced by the following endorsement: law in the state of ohio for two years. the matter was later heard by the ohio board of commissioners on grievances and discipline. plaintiff held the position estoppel. * make. if you object to any claim settlement we propose to make, you kemper insurance companies and lumbermen's mutual casualty company alleging four claims professional liability insurance policy insured to prevail on all allegations contained in one disciplinary proceeding in order to collect, as or defense of any such proceeding and then only in the event the allegations (b) any allegations against you brought by an official disciplinary committee, dennis, cincinnati, ohio, for appellees. we will provide for the defense of claims against you that are - deborah p. o'neill, be paid. a claim is defined in section d.1.b, as modified by the contingent disciplinary coverage denial of continuances without the exercise of judicial discretion. count iv charged > circumstances. b. any allegations against you brought by an official